Fox v. Dallas Hotel Co.

Decision Date19 April 1922
Docket Number(No. 3101.)
Citation240 S.W. 517
PartiesFOX et al. v. DALLAS HOTEL CO.
CourtTexas Supreme Court

Action by Gussie Fox and others against the Dallas Hotel Company. Judgment for plaintiffs was reversed by the Court of Civil Appeals (196 S. W. 647), and plaintiffs bring error. Affirmed, with directions for new trial.

Etheridge, McCormick & Bromberg, of Dallas, for plaintiffs in error.

C. C. English, A. P. Wozencraft, and Murphy W. Townsend, all of Dallas, for defendant in error.


This was a suit by plaintiff in error Mrs. Gussie Fox, for herself and as guardian of her two minor children, to recover of the defendant in error, Dallas Hotel Company, actual damages on account of injuries causing the death of Alexander Fox, the husband of Gussie Fox and the father of the minors.

Alexander Fox was a night watchman for A. Harris & Co., Incorporated, doing a mercantile business at Dallas in the first five floors and basement of a building of sixteen stories leased from Adolphus Busch. While using a hydraulic elevator extending from the basement to the sidewalk in the regular performance of his duties as a watchman, Fox was caught beneath the elevator and sustained injuries from which he died.

Adolphus Busch owned the Busch Building and owned over four-fifths of the stock of the defendant in error, Dallas Hotel Company, a corporation, which owned and operated the Adolphus Hotel. The hotel and the Busch Building were united by a tunnel, for the purpose of transmitting power, light, heat, and water from the power plant in the hotel to the Busch Building. The Busch Building, above the basement and lower five stories, was used for offices. There were nine passenger elevators, operated by means of electric power, in the Busch Building, four for the store of A. Harris & Co., and five for the offices. A freight elevator and a dumb-waiter were also in the store, both being operated by electric power.

It was alleged by plaintiff in error that defendant in error had undertaken in behalf of A. Harris & Co., and had agreed with A. Harris & Co., for compensation received, to supervise all the elevators in the Busch Building and to keep them in such repair as to be reasonably safe for the use of the employees of A. Harris & Co., knowing that they were to be used by said employees, including Alexander Fox; that defendant in error had the charge, management, and control of the elevators; that Alexander Fox was using the hydraulic elevator in discharging his customary duties on the night of January 30, 1914, when the elevator became stuck, when about halfway down the shaft, because of defendant in error's negligence in permitting same to become out of repair and dangerous; that thereupon Alexander Fox undertook to ascertain the defect in the elevator, when it suddenly shot downward, catching and crushing his legs and inflicting injuries from which he died, such injuries being the proximate result of the negligence of defendant in error in its failure to keep the elevator in a state of repair so as to be reasonably safe for use.

Defendant in error pleaded, among other defenses, that plaintiff in error had recovered and collected a judgment against the Fidelity & Casualty Company of New York for $2,804.21, in a suit brought by plaintiff in error against said company and A. Harris & Co. for the damages sustained by the widow and children of Alexander Fox from his death as the result of the injuries he had sustained on January 30, 1914, while engaged in the work of his employment by A. Harris & Co.; that in said suit a recovery was sought against A. Harris & Co. on allegations that the injuries to Fox were the proximate result of negligence on the part of A. Harris & Co. in failing to properly maintain the hydraulic elevator which inflicted said injuries, and in failing to furnish Fox a reasonably safe place to work and reasonably safe appliances with which to perform his duties; that a recovery was sought of the Fidelity & Casualty Company on allegations that it had become bound to pay plaintiff in error $2,804.21 as the present value of the balance due of the compensation to which plaintiff in error had become entitled under the Employers' Liability Act (Acts 33d Leg. c. 179 [Vernon's Sayles' Ann. Civ. St. 1914, arts. 5246h-5246zzzz]), by reason of the Fidelity & Casualty Company having agreed with A. Harris & Co. to insure the payment of the compensation specified in the act to injured employees and to the beneficiaries of deceased employees. Defendant in error further pleaded that in said suit final judgment was rendered that plaintiff in error take nothing by her suit against A. Harris & Co., and that, after said judgment, plaintiff in error had executed a release unto both A. Harris & Co. and the Fidelity & Casualty Company from all liability by reason of Fox's injuries and death in consideration of the payment of said judgment and certain weekly installments previously paid by the Fidelity & Casualty Company.

Defendant in error further properly pleaded that the injuries to Fox were proximately caused by his own contributory negligence in the following particulars: (1) That Fox in order to look under the elevator needlessly placed his body in a position where he would be injured if the elevator should descend; (2) that he failed to overcome the sticking by operating the elevator up and down; (3) that when the elevator stopped he failed to lock it in position; (4) that he went under the elevator without having locked it; and (5) that in working under the elevator he failed to get entirely in the pit.

To our minds, the uncontradicted evidence established that defendant in error had, prior to the injuries received by Fox, to subserve its own interests, placed engineers in active and actual charge and control of the elevators in the Busch Building, whose duty it was to repair same, and that such action was taken by defendant in error with the approval and acquiescence of A. Harris & Co. and with the understanding that A. Harris & Co. would make suitable contribution to the compensation of such engineers, though the amount of such contribution was not definitely determined until subsequent to the death of Fox.

There was sufficient evidence to raise a question of fact as to each of the distinct grounds of contributory negligence set up in the answer of defendant in error.

Plaintiff in error excepted to so much of the answer of defendant in error as pleaded in bar of this suit the previous suit and judgment and release between her and A. Harris & Co. and the Fidelity & Casualty Company, because it appeared from the answer that the sums paid to plaintiff in error were in discharge of a contractual liability arising under the Workmen's Compensation Law, and hence same afforded no defense to plaintiff in error's suit against defendant in error, in whole or in part. The district court sustained this special exception.

The district court refused a requested charge directing the jury to find for defendant in error on the ground that defendant in error owed no duty to maintain and repair the hydraulic elevator, and, instead, gave a charge to the jury to the effect that defendant in error owed to Alexander Fox the duty to exercise ordinary care to maintain the elevator in question in a reasonably safe condition for his use.

In answer to special questions, the jury found that defendant in error negligently permitted the packing around the plunger of the hydraulic elevator to be too tight; that such negligence occasioned the death of Alexander Fox; that in his conduct in, around, and about the elevator or its shaft, prior to or at the time of the injury, Alexander Fox was not guilty of contributory negligence; and that $3,000 was the amount of actual damages sustained by the widow and by each child.

Objection was made to the question submitted to the jury with regard to Fox's contributory negligence because it did not present separately each of the grounds of contributory negligence which were pleaded and proven, and special charges were requested by defendant in error asking a separate submission of the distinct matters relied on as constituting contributory negligence on the part of Fox. The objection was overruled, and the special charges were refused.

On the jury's special verdict, judgment was rendered by the district court that plaintiff in error recover $9,000 of defendant in error.

On appeal the Amarillo Court of Civil Appeals reversed the judgment, holding: (1) That there was error in sustaining plaintiff in error's special exception to the plea by defendant in error of the suit and judgment and release as between plaintiff in error and A. Harris & Co. and the Fidelity & Casualty Company, because the same were conclusive against plaintiff in error's right to recover anything of defendant in error; (2) that there was error in the charge that defendant in error owed the duty to Fox to exercise ordinary care to maintain the elevator in a reasonably safe condition for his use, because such duty depended on whether defendant in error had agreed with A. Harris & Co. to keep the elevator in repair, and the evidence as to whether such an agreement was made was conflicting; and (3) that there was error in the court's submission of the issues arising under the pleas of contributory negligence and in the refusal of the defendant in error's requested special charges on contributory negligence.

We agree with the Court of Civil Appeals that the settlement between plaintiff in error and A. Harris & Co. and the Fidelity & Casualty Company, according to the averments of defendant in error's answer, was under the Employers' Liability Act. The first question we will determine is whether the settlement and the judgment on which it was based precluded a recovery herein by plaintiff in error.

Under the 1917 amendment to the Employers' Liability Act...

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